On November 30, 2012, the Office of Administrative Law approved the Fair Employment and Housing Commission’s (FEHC’s) new pregnancy disability leave (PDL) regulations. The main purpose of these new regulations is to help workers affected by pregnancy stay in their job. These new regulations, which become effective on December 30, 2012 and impact all California employers with 5 or more employees, include the following highlights:
1. “Perceived Pregnancy” Added as New Basis for Discrimination
Effective December 30, 2012, an employer will be held liable for acts of discrimination based upon the perception that an employee is pregnant. The new regulations expand the protected class of pregnant employees to include those who are not pregnant but who suffer adverse employment actions based on the perception by employers that they are pregnant.
2. Broadened Definition of “Disabled by Pregnancy”
The definition of “disabled by pregnancy” has been broadened to include time off for things such as postnatal care; bed rest; gestational diabetes; pregnancy-induced hypertension; post-partum depression; childbirth; loss, or end of pregnancy; and/or recovery from childbirth, loss, or end of pregnancy. This change makes it easier for an employee to qualify for PDL.
3. More Medical Professionals Authorized to Provide Certifications
The definition of “health care provider” has been expanded to include a broader list of professionals who are authorized to provide medical certifications and advice related to PDL. The list now includes marriage and family therapists, licensed acupuncturists, licensed midwives, clinical psychologists, clinical social workers, chiropractors, and physical assistants.
4. New Reasonable Accommodation Requirements
The new regulations expand an employer’s reasonable accommodation obligations to include (1) modifying work schedules to provide earlier or later hours, (2) providing stools, and/or (3) providing additional break time for lactation or trips to the rest room. Section 7219.17 of the new regulations sets forth the rules that apply to any request for reasonable accommodation, transfer, or disability leave because of pregnancy.
5. Eligibility Requirements Eliminated
Effective December 30, 2012, there is no eligibility requirement — such as length of employment or minimum hours worked — before an employee affected or disabled by pregnancy is eligible for reasonable accommodation.
6. Broader Reinstatement Rights
Generally, an employee on pregnancy leave has a right to reinstatement to the same position, or a comparable position, subject to employer defenses. Reinstatement to the same position is not required if the employer can show that the employee would not otherwise have been employed in the same position at the time of reinstatement, due to legitimate business reasons that are unrelated to the leave (e.g., a layoff pursuant to a plant closure). Even if the employer is excused from reinstating the employee to her same position, the employer must make an additional showing in order to refuse to reinstate the employee to a comparable position — which the regulations now define as a position which is “virtually identical” to the prior one. Now, under the new regulations, an employer can justify non-reinstatement to a comparable position by showing that it would not have offered a comparable position to the employee had she been continuously at work. Alternatively, the employer can show that there is no comparable position “available” (a term which is also newly defined) in which case the employer must notify the employee of open positions for 60 days following the scheduled date of reinstatement.
7. New Calculation of the 4-Month Leave Period
The new regulations now calculate an eligible employee’s 4 month leave period in hours instead of days. Four months is defined as one-third of a year (or 17 1/3 weeks). Thus, a full-time employee who works 40 hours a week would be entitled to 693 hours of leave (40 X 17.33). Similarly, a part-time employee who works 20 hours per week would be entitled to 346.6 hours of leave (20 X 17.33).
8. Continuing Health Care Coverage/Overlap with CFRA and FMLA
Since January 1, 2012, California employers with 5 or more employees have been required to provide continued health benefits to employees on PDL for the duration of the leave. Employers with 50 or more employees already had a similar obligation to provide up to 12 weeks of health benefits continuation under CFRA and/or FMLA. When the new PDL benefits continuation rules took effect in 2012, it was unclear if employees who already were guaranteed benefits during a CFRA/FMLA leave were entitled to additional PDL benefits. The new regulations clarify that benefits continuation during PDL is separate and distinct from benefits continuation during a CFRA leave, and therefore employers with 50 or more employees must continue coverage during both leave periods.
9. New Forms and Notices
The new regulations include new certification forms and employee notices. These can be found at the very end of the new regulations, which can be found here.
Employers should review the new regulations and update their employee handbooks, policies, notices, and forms as necessary.